' This is second appeal from the judgment of the IInd Additional District Judge, Larkana, dated 25th March, 1977 whereby the learned Additional District Judge had dismissed the appeal of the present appellant and upheld judgment of Civil Judge, Larkana, dated 27th July, 1972. By the above judgment the learned Civil Judge had decreed the suit of respondent No, 1 against the appellant for Rs, 14,200 as damages for loss of lubricant which was booked by M/s. Attock Oil Company with the Pakistan Railway to be delivered to the respondent No, 1 at Larkana.
2. The admitted facts are that M/s. Attock Oil Company had booked 4,400 gallons of lubricant in an oil tanker of Pakistan Railway at Rawalpindi Station. The bottom valve of the Railway tanker was properly sealed by the M/s. Attock Oil Company. This seal was also checked by the Excise Official who had to verify the contents of the oil tanker for the purpose of charging Excise duty. When this tanker reached Larkana, the seal of the bottom valve was found missing and the lubricant was leaking therefrom. The respondent got it checked at the Railway Station and found that the tanker contained 2,684 gallons short of 4,400 gallons lubricant which was originally filled in the tanker. The respondent cleared the consignment under protest and gave notice to the Railway Administration for making up the loss. On refusal of the Railway Administration to make up the loss, the plaintiff filed suit for damages claiming the value of the 2,684 gallons lubricant at the market rate, which was Rs, 5.19 per gallon. At this rate the value of the lubricant which was lost by leakage, came to Rs, 13,929.26. Adding interest to this amount the respondent/plaintiff filed suit for recovery of Rs, 14,200.
3. In their written statement the appellant did not deny the shortage, nor quantity of the shortage.
Their plea was that the goods were booked at the owner's risk and as such the Railways, as carriers, were not responsible. M/s. Attock Oil Company was defendant No, 2 in the suit, whose plea was that the Railway tanker was properly filled with 4,400 gallons of lubricant and duly sealed which was checked by the Excise Officials. Following issues were framed by the trial Court :-
(1) Whether M/s. Attock Oil Co., delivered the goods of the particulars as shown in paras. Nos. 2 to 4 of the plaint, to the defendant at Rawalpindi, for carriage to the plaintiff, at Larkana ? If so, what is the effect ?
(2) Whether there was any shortage in the goods, at the destination ? If so, what is the effect ?
(3) Whether the defendant is liable to the plaintiff for any such shortage ? If so, to what extent and what is the effect ?
(4) Whether the suit is bad for non-joinder of necessary party ? If so, what is the effect ?
(5) What should the decree be
4. The learned trial Judge, after recording evidence of the parties, came to the conclusion that the shortage of lubricant was due to negligence of the Railway and as such they were liable to pay costs of the lost lubricant amounting to Rs, 14,200 which also included interest from date of receiving the consignment upto the date of the suit. In view of the above finding the suit of the respondent was decreed against the appellant only, while the suit against the Attock Oil Co., who has been added as formal party in this appeal, as respondent No, 2, was dismissed.
5. In support of its case the respondent No, 1 had examined Nisar Ahmed, Installation Supervisor of M/s. Attock Oil Co. (Exh. 29). Iftikhar Ahmed partner of the respondent's company (Exh. 64), Mirza Afaq Hussain, Station Master, Larkana (Exh. 88) and Ali Ahmed, Railway Goods Clerk. Larkana (Exh.
77). On behalf of the appellant D. Ws. Abdul Razzaq, Goods Clerk, Rawalpindi (Exh. 90), Malik Muhammad Ayub, Train Examiner, Sargodha (Exh. 95), Muhammad Bashir. Train Clerk, Rohri (Exh.
96), Nizamuddin, Train Clerk, Sukkur (Exh. 97), Saeed Akhtar Train Guard (Exh. 98), Maqbool Hussain, Railway Claims Inspector (Exh. 99) and Attaullah, Assistant Chief Draftsman, Lahore (Exh. 101).
6. From the evidence of the above witnesses it was proved that the tanker wagon was intact upto Sukkur and that the leakage started in between Sukkur and Larkana. After discussing the evidence, the learned trial Judge had come-to the conclusion that it was the duty of the Railway Administration to have proved as to how the leakage occurred between Sukkur and Larkana. It was responsibility of the carrier to prove that they had taken due care to deliver the consignment in the same condition in which it was entrusted to them by the consignee. Both the Courts below have come to concurrent finding of fact that the appellants have failed to discharge the burden of proving that they had taken due care to see that the consignment was delivered to the consignee in the same quantity in which it was filled and sealed at the station of origin.
7. The plea of the appellant that the seal of the bottom value was not properly affixed, is belied by their own evidence according to which the tanker reached in proper condition from Rawalpindi upto Sukkur. Between Sukkur and Larkana the leakage started and the appellants only were in position to explain as to how this occurred and that it was not due to their negligence. It is also in evidence that the leakage was trickling drop by drop which could not have caused shortage of 2,684 gallons within the short distance of 70 miles between Sukkur and Larkana. The presumption therefore, is that after removal of the seal the shortage had been caused by deliberate pilferage.
Hence no exception can be taken to the finding of the two Courts below that the Railway Administration was responsible to make up the loss of respondent No, 1 for the shortage.
' Agreeing with the judgments of the two Courts below I find no substance in this appeal which is dismissed with cost.